When the Lawyer Knows the Client Is Guilty

When the Lawyer Knows the Client is Guilty:
Legal Ethics, and Popular Culture
Michael Asimow
March 2006
The question of what a criminal defense lawyer should do when the lawyer knows for certain that the client is guilty of the crime has bedeviled legal ethics for as long as that subject has existed. This talk is a shorter version of a paper Richard Weisberg will publish on the subject.
Let me start by recounting a couple of notorious trials in which a defense lawyer knew his client was guilty.
The first is the Courvoisier case, set in England in 1840, and described in detail in my colleague David Melinkoff’s 1973 book The Conscience of a Lawyer. A English nobleman, Lord William Russell, was murdered in his sleep. Suspicion fell on Lord Russell’s butler, Courvoisier, because of damaging circumstantial evidence against him, particularly the fact that some but not all of the missing property was found inside the walls of the butler’s pantry. Courvoisier stoutly maintained his innocence.
Courvoisier was represented at his trial in the Old Bailey by Charles Phillips, who had a well-deserved reputation for emotionalism and flamboyance. Amazingly to us, it was only in 1836, four years before the Courvoisier case, that defense lawyers were even permitted to address the jury in an English felony case. Before that, the judge was supposed to represent the defendant!
On the first day of trial, Phillips aggressively cross-examined several prosecution witnesses and things were going well for the defense. On the second day of trial, a surprise witness appeared. Charlotte Piolaine owned a hotel in Leicester Square. She had previously employed Courvoisier. She testified that six weeks before the murder he had asked her to hold a package for him, which turned out to be the missing silver plate. Phillips’ impromptu cross damaged Piolaine’s reputation; he implied she was a liar and that her hotel was a gambling den. His 3-hour closing was extremely emotional and he managed to...